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Critical Analysis Of Blasphemy Law In India And UK (By-Nirmitee Sable)
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Critical Analysis Of Blasphemy Law
In India And UK
Authored By-Nirmitee
Sable
Examination Of Master Of Law (LL.M)
Savitribai Phule
Pune University
Introduction
All human rights are inalienable, fundamental, and
interconnected. However, nowhere is this connection
more apparent than in the discussion surrounding free speech and incitement to
racial or religious intolerance.
"Irreverence to God, religion, a religious
image, or anything else that is deemed sacred" is what the word "blasphemy" connotes.
It has been regarded as a common-law felony [in the United States] because of its propensity to cause
disturbances of the peace. Certain laws expressly make crime illegal. But the justification for blasphemy being a crime
is true everywhere, not just in common law nations.
Despite having diverse populations and legal structures, many nations have
blasphemy laws. All nations have laws
against blasphemy, whether they are Christian nations like Greece and Cyprus, Islamic nations like Iraq and Egypt,
Jewish-majority Israel, Buddhist-majority Sri Lanka, or secular nations like Canada or Germany. Such crimes may concern
one specific religion, as in Qatar, or all religions, as in Denmark,
and they may carry punishments ranging from a straightforward fine in Italy to the death penalty
in Pakistan. In Pakistan, it may result in the death
penalty. However, blasphemy is not
a crime in many nations' legal
systems.
The United States of America declared the
blasphemy legislation unlawful and a violation of the right to free speech.
Although Section 295(A) was a part of the Indian Penal Code in 1860, India
could not address heresy until the
year 1927 despite sharing the same pluralistic democracy as America. According to the law, anyone who "insults or
attempts to insult the religion or the religious beliefs of that class by words, either spoken or written,
by signs, by visible representations, or by other means, with the deliberate and malicious intention of outraging the
religious feelings of any class of [citizens
of India] shall be punished with imprisonment of either description for a term
which may extend to [three years], with fine, or with both."
The Criminal Justice and Immigration Act of 2008 has
a variety of clauses addressing many facets
of criminal law, but Section 5 concludes a protracted discussion in England and
Wales on the subject of blasphemy
legislation. The common law in England and Wales abolishes acts of blasphemy, according to Section 79(1).
Although many have already said that the crime of blasphemy is dead or at least dying, the subtle elimination of
these ancient offences has caught many
people by surprise. In 2008, the common law penalties of treason and blasphemy
were formally abolished in England
and Wales. Scotland and Northern Ireland have similar laws, but they haven't been upheld in decades.
Historical Background
India, a country with a large Hindu population, did
not have a blasphemy law until 1927 because,
according to the Indian Constitution, "Hinduism faces no fetters on the intellect: a man may think
as far as he can; there is no blasphemy in the investigation; there is nothing
too sacred to be checked or questioned." In the midst of religious
tensions before independence, Mahashay Rajpal
wrote a pamphlet called Rangila Rasul. Muslim community leaders sought
retribution for Rajpal as a result of
the Brochure's harsh attack on Muslim religious sensibilities when it was published in 1926, which sparked
controversy. Rajpal was ultimately found guilty due to the absence of blasphemy laws in India, only
to be killed in 1929. The Indian Penal Code of 1860 was eventually revised by the British colonial authority, and
Section 295 was added in 1927 as needed
(A). Even after India was divided, the Section continues to be part of the
Indian Penal Code, 1860.
In the UK, the crime of blasphemy was
essentially a natural consequence of canon law. Pope Gregory XI ordered the prosecution of John Wycliffe and the
Lollards to continue throughout the year
1378. But at that time, the bishops had only the option of excommunication.
Unhappy with this, the clergy,
without the Lords' or Commons' permission, created a parliamentary act that permitted the arrest and imprisonment of
the heretics. The Act was attempted to be defunded by Parliament the next year, but the measure
failed and a series of criminal
investigations ensued.
They did not like the new powers that King Henry IV granted them in 1400. With these newfound authority, the Bishops were able to arrest and imprison any heretical religious
authorities, as well as all heretical teachers, owners, and writers.
Failure to abjure
(sternly renounce) or
revival after abjuration might result in the heretic being given over to public employees, carried in front of
the public, and burned so that their punishment
would instil dread in other people.
William Sawyer was sentenced to atonement in April 1399 after his bishop declared him guilty of heresy.
On February 12th, 1400, he was once more accused
of being a relapsed heretic,
and the Archbishop of Canterbury passed judgement. On March 2, eight
days before he received the power to exact such punishment, Sawyer was burned to death. There is a lengthy
list of individuals who were burned and beheaded between 1414 and 1506.
Heresy was deemed a common-law felony
by the Court of King's Bench in the 17th century and was prosecuted by common law judges.
The Second Parliament of Protectorate accused
James Naylor of the Quakers
of fleeing, plundering, flashing a red-hot poker in
his face, fracturing his tongue, and ultimately imprisoning him permanently on hard labour in 1656.
In convicting Naylor, the judge, Lord Commissaire Whitelock, makes a distinction between
heresy and blasphemy. From the 16th century through the middle of the 19th century,
blasphemy against Christianity was considered a crime under common law. Henry VIII believed that it
was wrong to publish or express any opinion that went against the Six Articles before he began enforcing the
principles of his new Church of England in
the 1530s (1539).
Blasphemy has also been used as a political tool to
target Christians, Unitarians, and others for
persecution. Since 1838, blasphemy has been considered a sin against
the Church of England. All accusations against God, including
the denial of His existence or providence, all of Jesus' repugnant warnings, all profane mockery of the Holy Scriptures,
and all of their parts that were disregarded
or mocked, were to be punished by the temporal courts with death,
incarceration, corporal sanctuary, and fine. In Wiltshire in 1656, two weavers named William Bond and Thomas
Hibbard were detained
on atheist charges.
The first known case of the common law offence
of blasphemy was Taylor's Case in 1676. It's
unclear if earlier occurrences went missed or not. "Taylor's
instance is the central pillar of this area
of the law," Lord Sumner concluded. The Court of Exchequer Chamber ruled
that the publication of such beliefs
constituted blasphemy in the case of Cowan v. Milbourn (1867), where the claimant failed to fulfil his
duty to provide the appellant with a seminar-room because the planned lessons were intended to
demonstrate that Christ's integrity was compromised, that his preaching was false, and that the
Bible was no more motivated than any other text; On that day, the court reaffirmed Lord Chief Justice Hale's statement
that the foundation
of English law is religion.
Lord Sumner expressed the position in Bowman v.
Secular Society, 1917, by repeating Hale's arguments
from Taylor and using the Latin phrase deorum injuriae diis curae, which means
"The sins against the gods are dealt with by the gods": Because it tends to harm (Christian) civilization, blasphemy is an offence
against the (Christian) state and is therefore illegal; yet, an offence against God in and of itself is
outside the purview of the (Christian) state. On December 9, 1921, John William Gott became the last
person in Britain to be imprisoned for blasphemy. He had three prior blasphemy convictions when he was sued for
publishing two pamphlets titled Rib Ticklers, or Questions for Parsons and God and God.
Gott parodied the biblical account of Christ
arriving in Jerusalem in these booklets by comparing him to the carnival muppet. He was sentenced to nine months of
hard work since he had an autoimmune
condition, and he passed away soon after it was over. The episode grew to be
the centre of the public's outrage.
In a speech in 1949, Lord Denning introduced the blasphemy laws of the past, asserting that "This law
was enacted because it was thought that the social structure, which was based on religion itself, could
only be shaken by ignorance of Christianity. The threat to society has
passed, and the crime of blasphemy
is no longer an issue."
According to the 1998 Human Rights Act, judges must interpret the law in a way that is consistent
with both the Constitution and the Convention for the Protection of Human
Rights and Fundamental Freedoms.
Blasphemous libel is seen by some to be in conflict with the Convention's restrictions on free speech.
Additionally, a claim that the blasphemy statute violates Article 10 of the Convention (allowing
for freedom of expression) was rejected in the case of Wingrove v. UK (1997), brought by attorney Mark Stephens soon
before the passage of the Human
Rights Act 1998. The Court determined that it fell within the State's
acceptable range for limiting free expression. More than 63,000
emails from angry Christian viewers
criticised the series'
presentation of religious iconography when the BBC agreed to screen Jerry
Springer: The Opera in January 2005.
(including one sequence showing Jesus pretending to be "a little
gay"). The BBC was the target of
a private blasphemy criminal complaint by the Christian Voice fundamentalist organisation, but the case
was dismissed by the City of Westminster magistrates court.
Christian Voice requested that the High Court
reverse that decision, but the request may not have been granted because the court determined that stage shows and
transmissions were specifically exempt from common law blasphemy offences
(section 2(4) of the Theatres
Act 1968). (section
6 of the Broadcasting Act 1990).
Constitutional Validity Of Article 124-A
If such offences are committed in a deliberate and
malicious manner with the intent to offend the
religious emotions of any class of citizens, they are punishable under
Section 295A. Because of the fact
that Section 295A is a punishable infraction, the police may detain defendants
without a search warrant. The very
presence of Section 295A, along with its potential for addiction, has a chilling effect on free speech, in
addition to the protracted hearing and decision-making of criminal
cases.
The parliament doesn't seem to want to change
or repeal the law, thus the courts are the only option. In fact, Subramanian Swamy filed a request last year
asking for the Indian Penal Code's several
rules against hate speech to be declared unconstitutional. However, Section
295A has a significant flaw: in the
1957 case of Ramji Lal Modi v. State of UP, a five-judge Supreme Court panel upheld its validity. This implies
that in order to overrule Ramji Lal Modi and establish the legislation, the Supreme Court would require at least a bench of seven
magistrates.
The 295A claimants would then be able to
convince a bench of two judges (before whom every case is originally heard) that there are enough grounds to
contest Ramji Lal Modi's validity. If persuaded,
this bench of two judges would have to submit the matter to a bench of five
judges, who would ultimately refer it
to a bench of seven judges to decide the case on its merits (assuming
they were satisfied).
There are legitimate arguments for the court to review and propose reversing
the verdict of Ramji
Lal Modi, despite the fact that the entire process is cumbersome from a procedural standpoint and is not viable to carry out. The Ramji Lal Modi
judgement needs to be reviewed by the
court, and this is a good case even though the Ramji Lal Modi process is
intimidating and unlikely to succeed.
According to Article
19(2) of the Constitution, the court found that Section
295a was a "reasonable
restraint" of free speech "in the interest of public order" in
the case of Ramji Lal Modi. The
primary justification offered by the Court was that, as required by Article
19(2), the expression "in
the interests" was quite broad and gave the state wide latitude
to enact a number of public order-related laws. According to the court, "[Section 295A] only sanctions
the aggravated form of insult
to religion when it is committed with the intentional and malicious goal of upsetting the religious
sentiments of that class.
This aggravated form of insult clearly has a calculated tendency to disturb public
order, and the section that penalises such behaviour is fully protected by Art. 19's clause (2) because it is a law that
places reasonable restrictions on the exercise of the freedom
of speech and expression
that is guaranteed by Art. 19(1). (a). "The court contends that it should be limited to
circumstances in which the prohibited communication is somewhat close to the possibility for public disruptions in
order for a legislation to be a properly restrictive
limit on freedom of speech in the interest of public order (For instance,
inviting an army to demolish public property, yet publishing a piece in This defence
was based on prior court rulings, where it was decided that
the "reasonable" standard required that the phrase be proportionate to the real harm that the state feared.
Nevertheless, the Court in Ramji Lal Modi rejected
this contention. The decision's weakness was
that the Court ignored the limitations imposed by the phrase
"reasonable constraints" and instead
concentrated only on "for the sake of." Ironically, the court
reversed course within three years, ruling
that there must be a direct relationship between speech and public disorder
rather than a "far-fetched," "distant," or "fanciful connection" in the case Superintendent, Central
Prison, Fatehgarh v. Ram Manohar Lohia.
The court concluded this examination in the
years that followed, ruling that the relationship between speech and insanity had to be comparable to the
"spark in a powder keg," and that only discussion that "encouraged eventual lawless conduct"
had been prosecuted. As we can see, a very
high state threshold must be reached before the public disorder may be used as
justification for limiting
communication. In reality, the Supreme Court ruled in the case that mere
passive membership in a terrorist
organisation was not a crime as long as the accused did not have the ability
to instigate violence.
The Supreme Court most recently
made a distinction between "advocacy" and "incitement" in the contentious Shreya Singhal decision,
concluding that legislation restricting freedom of expression
must be strictly adjusted to only include the latter types of speech within its
purview. Ramji Lal Modi's fundamental premise—that there is no requirement of likeness between
expression and disorder—has thus been repeatedly mocked and rejected by
the Supreme Court in the more than
fifty years since Ram Manohar Lohia's decision. It is clear that the language
of Section 295A is clearly too
ambiguous if the correct criterion is one of inducement to unlawful behaviour.
Under no circumstances can it be stated that a
deliberate offence against a religion or religious sentiments constitutes "incitement." In the Shreya
Singhal Case, the Supreme Court made it very
apparent that "overbroad laws"—those that included even legal
and respectable speech within their purview—would have to be ruled unconstitutional due to their propensity to stifle fundamental political and cultural
conversation. It should be noted that a seven-judge court can only decide to simply reject
Ramji Lal Modi and repeal
Section 295A.
Constitutional
courts around the world occasionally concur that time and new circumstances have circumvented old, antiquated
decisions made by judges in a different time with different sensibilities. The elimination of
long-standing judicial positions that are no longer feasible for modern society is not, however,
exceptional or embarrassing. One judgement that has outlived its usefulness is the Ramji
Lal Modi ruling,
which upholds the validity of the blasphemy statute.
Why Not Anti-Blasphemy Laws
For a variety of reasons, the majority of countries
have eliminated or reduced the penalties for
blasphemy. Using the word "religion" without identifying it:
Blasphemy has been described as disrespect for God or religion; nevertheless, the word "religion" itself
needs to be defined. As certain religions, like Hinduism, may
be polytheistic and rely on believe in God or Allah, as they do not include the faith in God, it is
apparent that belief in God, which can unify Judaism, Islam, and Christianity, is not sufficient.
Religious liberty: Numerous courts have attempted to define the term religion
through remarks or rulings. The Indian Constitution also guarantees the freedom of conscience, religious practise, and
propagation.
In accordance with the Universal Declaration of
Human Rights, Article 18 also defends atheistic and non-theistic viewpoints in an effort to enlarge the
definition of "religion." Atheism is also entitled to religious
freedom and, in many cases, the atheism
itself can be considered as blasphemy
if there are enough variations on the word "faith" to include it as a
religion. Freedom of speech and
expression is protected as a fundamental right in the constitutions of many
nations, including India. These
rights are also known as human rights. Free speech and freedom of expression are protected rights under numerous
international agreements that cannot be constrained by blasphemy laws.
The right to obtain freedom of expression, to
receive and transmit information and ideas without regard to boundaries, whether orally, in writing, through the
visual arts, or through any other
means, is guaranteed by Article 19 of the
International Covenant on Civil and Political Rights. However, the majority
has long viewed this right
as a means of oppressing the minority.
Blasphemy is defined as disrespect for God or
religion, however there is no precise meaning of the word "religion." Given that other religions, like
Hinduism, are debatably Polytheist, it is obvious
that the description that we use—that we believe in a God who may join Judaism,
Islam, and Christianity—is
insufficient. Buddhism is not a concept that depends on the existence of a Deity because there is no belief in a
Deity. Two main strategies have been developed in the US: one to identify fundamental principles and
the other to identify religion by analogy. Not every strategy is clear-cut or conclusive.
Why Anti Blasphemy Laws In UK?
The four nations that make up the United Kingdom are
Scotland, Wales, Northern Ireland, and England. 2008 saw the repeal of the "blasting" and
"blasting divorce" laws in England and Wales. The laws governing books are still the same in
England and Northern Ireland. Blasphemy is a common law crime that historically developed
from canon law and solely derided Christianity. In the Middle Ages, "blasphemy" was punishable by
death. According to Edward Moxon, a magazine publisher in Percy Bysshe Shelley's Queen Mab, a
"blasphemous libel" was declared guilty in 1841. The poet received a prison
term.
In 1949, Lord Denning concluded that the
"blasphemy" Act had become a "mortal letter" offence. It
was successfully revived in 1977 with
the publication of James Kirkup's The Lord Who Dares to Say His Name, a poem that brutally sexualizes the
figure of Jesus Christ. The Gay News magazine's publisher was found guilty and given a deferred jail
sentence. It was originally made available in 1976. In the UK, this would be the most recent successful
"blasphemy" case. The Criminal Justice and Immigration Act of 2008, which abolished the
"blasphemy" laws of England and Wales and went into effect on July 8,
2008, was supported by Prime Minister
Gordon Brown on May 8, 2008. Nevertheless, the Criminal Justice and Citizenship Act's
"blasphemy"-repealing provisions were only enforced in England and
Wales. Scotland and Northern Ireland
continue to be governed by regulations. The last successful
"blasphemy" case resulted in a 15-month
prison term for a librarian
named Thomas Paterson
in 1843. Till 1825, "blasphemy" carried a death sentence; Thomas Aikenhead was the most notable survivor. Commentators concur
that the Human Rights Act (1998) effectively nullifies the
"blasphemy" laws in Scotland
and Northern Ireland. This is due to the requirement that all courts in the
United Kingdom interpret the Act on
Human Rights law in accordance with the Convention on Fundamental Freedoms and Human Rights, which includes the freedom
of expression guaranteed by Article 10. However, before the introduction of the Human Rights law, it
had been argued in Wingrove v.
UK (1997) that "blasphemy" restrictions were incompatible with the
right to free expression on the basis that the state's free speech protections might include such restrictions.
Therefore, it is unclear if they could be charged under current Scottish
and Northern Irish law. It's unclear.
The Humanist Society of Scotland asked that the
Scottish government repeal the blasphemy law once more in December 2016. They acknowledged the existence of
various "blasphemy" laws that are still in use around the world, citing the Freedom of Thought Study, and
stated that having these statute laws "should
be a badge of shame for any progressive nation," noting the brutality with
which those accused of breaking them
are frequently punished by state agents or non-state actors, including
neighbours and relatives.
(Punjab Amendment) Bill,
2018 Relating To Blasphemy Law
According to section 295A of the Indian Penal Code,
"deliberate and malicious acts, intended to outrage religious emotions
of any class by insulting its religion or its beliefs
will be punished with
imprisonment extending to three years." According to the proposed
amendment, anyone found guilty of
"injuring, damaging, or sacrileging Sri Guru Granth Sahib,
Srimadbhagwatgeeta, Holy Quran, and
Holy Bible with the goal to offend the sensibilities of the people" will
receive a life sentence. The 2016
Punjab Amendment law enacted by the Akali Dal, which specifically addressed only acts of sacrilege against
the Guru Granth Sahib, is intended to be replaced with the proposed Penal Code bill. On a legal level, the bill's
drafting has drawn criticism for the impressive
way in which sacrilege has been defined; it should have been explicitly stated
as a physical desecration sacrilege
otherwise, even for writing a book or an article, making a speech, sketching a cartoon, or painting, a person
can be falsely accused of blasphemy despite the rights guaranteed by article
19 and article 25 of the constitution.
Criminal Justice And Immigration Act 2008
Dr. Evan Harris proposed a new section to the
Criminal Justice and Immigration Bill on the
House of Commons
floor on January
9, 2008, to remove what he called "the archaic
discriminatory, useless, illiberal, and non-human rights compliant
offences of blasphemy and blasphemous libel." Dr. Harris explained
the standard concerns
of legal ambiguity, discrimination, and purported conflict with the ECHR without
mentioning Green v. The City of Westminster
Magistrates' Court,
but there were also a few additional reasons made.
According to Dr. Harris,
the removal of these two charges won't result in a rise in general
outrageous behaviour in public
because there are already "enough statutes dealing with outraging public decency and public order violations"
on the books. Furthermore, Dr. Harris said that the statute ought to be abolished because, despite the
fact that it had not been utilised in a long time, it had "a chilling effect" that led to
self-censorship, which is especially telling considering the High Court's recent remarks. Dr. Harris claimed
that there was no longer "an excuse for prevarication" because "religious hatred was dealt
with two years ago," in reference to the arguments made against
outlawing blasphemy at the time the Racial and Religious
Hatred Bill was being discussed. Dr. Harris, however, was
persuaded of the benefits of dithering, and he withdrew his new section in response to a promise by the
Government to introduce its own new clause to the same effect in the Lords, provided that negotiations
with the Church of England produced a suitable result. The Government claimed that the ruling in
Green v. The City of Westminster Magistrates' Court, which involved the Theatres Act, confirmed the impression that
the offences appear to be dead and
that it was "about time that Parliament reached a settled judgement on the
subject." The Government
introduced a motion in the House of Lords on March 5, 2008, to eliminate the offence of blasphemy. First, the law
"has gone into disuse," which "runs the risk of bringing the law as a whole into discredit," and
second, there is now "new legislation to protect individuals on the grounds of religion and
belief," according to the government's justifications for the revision. While it is true that there haven't been
any convictions since 1979, the Green judgement clearly demonstrated that the law was being applied.
This first justification appears
dubious.
Regarding its second justification, the Government
was on much firmer basis because Green demonstrated that, notwithstanding blasphemy's continued existence, the offences had been severely restricted. The amendment was
approved by the House of Lords by a vote of 148 to 87 and the House of Commons by a vote of 378 to 57.
Conclusion
British India passed legislation making it
illegal to "disturb a religious assembly, trespass on burial grounds, insult religious beliefs,
or intentionally harm or degrade a location or an item of worship, punishable by up to 10 years in
jail" in 1860. The Indian Penal Code's Section 295A has been utilised as a blasphemy statute to forbid disparaging Hinduism, Islam, and Christianity.
The anti-blasphemy law contained in section
295A of the penal code from the British era, which was enacted by Christians who ruled India,
is still in effect
and has not been repealed.
The fundamental goal of Section 295A, which was
first introduced in 1927, has been to uphold
"public order in a multireligious and religiously
sensitive society," by
prohibiting hate speech that intentionally and maliciously
attempts to offend the faith or religious beliefs of any class of citizens. The need that the defendant have
a "deliberate and malicious intention of outraging religious emotions" in the Indian Penal Code, unlike in
English common law, is a significant distinction between
the offences under English common law and the Indian Penal Code. However,
Section 295A has frequently been invoked to suppress open and sincere debate on religious matters and continues to pose a
danger to the right to free speech. The identical section 295A is employed as a blasphemy statute in
Pakistan and Myanmar and may be found in those
countries' penal codes as well. Hindus in India have made several
appeals to do rid of the outdated British
code.
Before 2008, the UK's blasphemy laws had
previously been reviewed in the 1970s, following protracted and divisive campaigns against homosexuality by some
Christian organisations. After a poem
about Jesus was published in a gay magazine, Christian activists brought the
issue to a climax in the court case
R. v. Lemon. After then, the blasphemy laws were abandoned as unworkable and were forgotten.
But the public was shocked to learn about the
antiquated concept of blasphemy in the news once more in 2008. As part of their campaign against homosexuality, a
Christian pressure organisation attempted to revive it15.
As a result, the UK's blasphemy
laws were repealed on May 8, 2008.
A spokeswoman for Prime Minister
Gordon Brown declared
in January 2008 that the Government
will take the removal of the blasphemy laws into consideration while the
Criminal Justice and Immigration Bill was being passed. Before making a decision, the government sought
input from the Church of England and other churches.
The action was taken in response to a letter to The Daily Telegraph that
was prepared at the National Secular Society's and MP Evan Harris's request and signed by prominent individuals,
including Lord Carey, a former archbishop of Canterbury, and demanded the repeal of the legislation.
Article Information
Critical Analysis Of Blasphemy Law In India And UK (By-Nirmitee Sable)
Authors: Nirmitee Sable
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/30
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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